- The Washington Times - Saturday, September 23, 2017

Education Secretary Betsy DeVos’ decision to rescind the Obama administration’s Title IX letter on campus sexual assault won applause from those who feared the policy eroded due process and presumed guilt of any accused person.

Ms. DeVos also issued an interim guidance for schools on “how to investigate and adjudicate allegations of campus sexual misconduct under federal law” while the department proceeds with its rulemaking to replace the 2011 policy.

“This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly,” said Ms. DeVos in a statement. “Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

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She announced earlier this month that the rulemaking process had begun to replace the policy, saying that the “era of rule by letter is over.”

Her decision drew strong support from civil liberties organizations that had fought the 2011 “Dear Colleague” letter from the department’s Office for Civil Rights, which put pressure on universities to crack down on sexual assault by, for example, using a lower standard of proof for findings of guilt.

The result was more than 180 lawsuits filed by students disciplined, suspended or expelled for sexual assault who claimed that they had been railroaded by universities fearful of incurring an investigation or risking their federal funding by running afoul of the department.

“Dear Colleague: It’s over! Education Department rescinds controversial 2011 letter,” said the Foundation for Individual Rights in Education in a statement.

Robert Shibley, FIRE executive director, said that the previous policy aimed at combating campus sexual assault had “eviscerated due process rights of students and faculty accused of sexual misconduct on campus.”

“Fair outcomes are impossible without fair procedures,” he said. “When the government sprang its 2011 letter on colleges and students without warning, it made it impossible for campuses to serve the needs of victims while also respecting the rights of the accused. With the end of this destructive policy, we finally have the opportunity to get it right.”

The interim guidance issued Friday allows universities to determine whether to keep the 2011 “preponderance of the evidence” standard, which is used in civil judicial proceedings, or adopt the “clear and convincing evidence” standard used in criminal cases.

The announcement was condemned as “shameful” by those who accused Ms. DeVos of not taking campus sexual assault seriously.

Sen. Kirsten E. Gillibrand, New York Democrat, said the decision will “hurt and betray students, plain and simple,” while former Vice President Joseph R. Biden said in a tweet that, “Colleges & universities must honor obligations to students & survivors.”

“This harmful step in the wrong direction may cause survivors of sexual assault to go back into the shadows, allowing predators to continue to roam college campuses and the epidemic of college sexual assault to spread,” said Sen. Patty Murray, Washington Democrat.

The Association of Title IX Administrators said the Dear Colleague and subsequent 2014 Q&A on Title IX and Sexual Violence had been “both a blessing and a curse, with many benefits, some confusion, and a few unintended consequences.”

At the same time, the group warned universities against making wholesale changes to their campus judicial proceedings, saying that lawyers for students who file sexual assault complaints are “waiting with baited [sic] breath for any school to make that move.”

“Any school that de-prioritizes Title IX may quickly find itself on the wrong side of a federal judge, campus activists, or both — but certainly on the wrong side of history,” said the ATIXA statement.

Certainly there has been no shortage of legal challenges under the Obama-era guidance. Some students have won settlements from universities after being suspended or expelled for sexual assault.

In July Columbia University issued a statement emphasizing that 2015 graduate Paul Nungesser was found not responsible for sexual misconduct after he sued the school over the “mattress girl” protest against him by a fellow student, Emma Sulkowicz, for which she received course credit.

Andrew T. Miltenberg, a New York City lawyer who has worked with nearly 150 students from more than 40 colleges, said that the “Dear Colleague” letter, “while well intentioned, was poorly implemented.”

“Too often, it has been used as a hammer instead of a shield,” said Mr. Miltenberg in an email. “Schools have misused their Title IX apparatus in a manner of which they cannot possibly be proud.”

Don’t expect the campus landscape to change overnight, he said, pointing out that “colleges and universities have spent millions of dollars for training and administrative hires.”

“They will be unlikely to get rid of those people or their agendas,” Mr. Miltenberg said. “And tuitions will continue to go up to pay for all this.”

The decision to rescind the “Dear Colleague” comes too late for his clients, but he said he hopes the DeVos move would send a signal to the courts.

“As to our ongoing cases, I hope that the courts take notice of the fact that these young men who have had their lives altered were found responsible under protocols which we now understand to be unjust,” said Mr. Miltenberg. “Perhaps they can now get their lives back.”

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